Sunday, October 31, 2004

When the Man's Right . . .

. . . he's right. According to MooreWatch, the film maker had this to say about downloading his movie, Fahrenheit 9/11:

I don’t agree with the copyright laws and I don’t have a problem with people downloading the movie and sharing it with people. As long as they’re not doing it to make a profit, you know, as long as they’re not trying to make a profit off my labor. I would oppose that.

That sounds like an explicit grant of a non-exclusive licence to copy and publicly distribute the film. Whether he can do so depends on what kind of agreements he has with other companies (see some of them here). For example, if he already granted an exclusive licence to publicly distribute the film in the United States to, say, Sony Pictures, then he cannot grant non-exclusive licenses to members of the public generally unless he reserved that right. Right now, the distributor doesn't seem to care. Unlike other things Michael Moore says, I hope this one catches on.

Whoa

How about a libel suit? The First Amendment protects statements about public figures on matters of public concern from libel suits unless the speaker had "actual malice," meaning that the speaker was at least reckless about the statement's falsity (get Professor Volokh's textbook today). In other words, the speaker would either have to know that the statement is false, or know there is a substantial likelihood that it is false but nevertheless says it anyway. Karl Rove is certainly a public figure, and something like this (election stuff) is certainly a matter of public concern.

Cronkite's exact words were he was "inclined to think that Karl Rove, the political manager at the White House, who is a very clever man, he probably set up bin Laden to this thing." Mere opinions cannot be false statements, but this does not look like an opinion to me. The words "inclined to think" could mean that his political inclinations make him suspicious of Rove, or perhaps that he has some information that would lead him to this conclusion. He also says that he "probably set up bin Laden," implying a factual probability. Together, these may be an opinion: Cronkite is purely speculating that, knowing Rove, he is not above these kind of tricks, and that based on that information, he suspects Rove's likely involvement. This is tenuous; he is speculating on a specific factual situation, with no sort of subjective element that I can see.

Also, Cronkite is a news man (supposedly), and if someone like, say, Bob Woodward were to opine on a probable factual scenario, the listener would probably be more inclined to trust that person than if someone like Michael Moore or Kos said it. In daily life, people sometimes use this sort of language when they are clearly not in the know, and are speculating. However, the Larry King Live setting was not so casual: he was making a nationally broadcast statement about events listeners would be inclined to see him as a factual authority on. I think this cuts against seeing his statements as opinion.

There are other factors to consider, like his tone (was he laughing, or dead serious?), and what kind of question (if any) was asked. But from the tone of the Drudge piece, I have no reason to think it is some joking remark, but is instead meant to cast aspersions on the White House, with the buzzword "Karl Rove" a synonym for "underhanded" (much the way "Halliburton" is used to mean "corrupt"). If this is so, his irresponsible factual assertion could, as I see it, make him liable for libel.

There are other considerations, like whether this is speech about the government generally, which is categorically immune from suit (which I don't know enough about to comment on), and of course Rove is unlikely to sue at all. I like to try to stay sharp, though :)

[UPDATE:] Ann Althouse thinks Cronkite was joking. I still haven't seen it, but I continue to think it is oddly phrased for a joke, but I'll keep an open mind.

Full Circle

Many have linked to the Belmont Club's analysis of the bin Laden tape, which basically concludes that it is an offer of surrender: "if you leave us alone we will leave you alone." Thinking back, though, the whole analysis of the war on terror, 9/11, and a diplomatic solution with the Islamic world has come full circle. Weren't the liberal pundits the ones advocating a better understanding of the Islamic world as a solution to terrorism? Weren't America's dealings with the "corrupt" Saudi Government the problem, rather than radicals hating U.S. culture? (and isn't this a Michael Moore sticking point?) Usama's pointing to our unwavering support of Israel eerily echos what can be heard on college campuses in the U.S. today. In short, right after 9/11, though subdued, we already heard how the evil U.S. was not leaving the Middle East alone, and the solution sounded a lot like appeasement.

It isn't so much that this sounds like a surrender, but it sounds like he is playing the victim, and the poltics of victimization not only propose a future "solution" to terrorism (although rightly identified by Wretchard as a false solution), but reach back and speak to the America-as-evil-empire crowd. To me, this does not signal a change, but a cold tactical decision. By throwing a bone to the anti-war crowd, which always believed it was America's fault we were hit, he can stall the largely U.S. war effort, buying himself some time.

I don't know. It certainly seems odd rhetoric, and in the end I think he underestimates America's tendency to give the rest of the world the finger.

Friday, October 29, 2004

Amendment Roundup

Perusing some proposed legislation, here are some of the more interesting proposed constitutional amendments circulating in Congress:

All citizens of the United States shall have a right to a home, which right shall not be denied or abridged by the United States or any State.

Congress shall have the power to enact a line-item veto.

All citizens of the United States shall have a right to a clean, safe, and sustainable environment, which right shall not be denied or abridged by the United States or any State.

The Congress of the United States shall tax all persons progressively in proportion to the income which they respectively enjoy under the protection of the United States.

Notwithstanding section 1 of article III of this Constitution , a judge of an inferior court created under that article may not, except with the consent of the Senate, hold office for more than 10 years after--(1) the judge took office, (2) the Senate last consented to the continuance in office of the judge, or (3) the ratification of this article, whichever last occurs.

No person shall be a Senator or Representative in Congress who shall not have attained the age of twenty one years.

Every citizen has the right to work, to free choice of employment, to just and favorable conditions of work, and to protection against unemployment.

The compensation paid to Members of Congress and to the President shall be forfeited on a per diem basis at the conclusion of each fiscal year until such time as all of the general appropriations bills for the following fiscal year are enacted.

A couple of those above, as well as many other rather socialist amendments, have been proposed by Rep. Jesse Jackson Jr. of Illinois. Quite the character. Of course, there are many more proposed amendments for things like flag burning and repealing the Twenty-Second Amendment.

Netflix in Pakistan?

Drudge has the goods on a transcript of the bin Laden tape. Some interesting points:

And [George Bush senior?] was feeling jealous they [arab leaders] were staying for decades in power stealing the nations finances without anybody overseeing them. So he transferred the oppression of freedom and tyranny to his son and they call it the Patriot Law to fight terrorism. He was bright in putting his sons as governors in states and he didn't forget to transfer his experience from the rulers of our region to Florida to falsify elections to benefit from it in critical times.

. . . .

We agreed with Mohamed Atta, god bless him, to execute the whole operation in 20 minutes. Before Bush and his administration would pay attention and we never thought that the high commander of the US armies would leave 50 thousand of his citizens in both towers to face the horrors by themselves when they most needed him because it seemed to distract his attention from listening to the girl telling him about her goat butting was more important than paying attention to airplanes butting the towers which gave us three times the time to execute the operation thank god.

. . . .

[Femal Presenter:] Bin Laden pointed to the millions of pounds of explosives dropped on Iraqi children as bush his son had done.

Maybe it's just my conservative paranoia, but his talking points seem eerily similar to some of the main sticking points of Fahrenheit 9/11. Does his cave have a DVD player?

Too Much

Just got an email from the UCLA School o' Law office of career services, and it has announced a resume and cover letter writing workshop for 1Ls. What fool decided it was a good idea to complicate the first semester of 1L year with pressure about finding a job? This person was obviously never in law school, and judging from the general quality of OCS here, probably isn't too good at finding a job either. Ugh.

Bush-Edwards?

Reuters has the details on a theory that could give George W. Bush the presidency with John Edwards as his vice president (hat tip How Appealing). Under the Constitution, article II, section 1, cl. 3, if the electoral college produces a tie, the House of Representatives will vote, by state, to decide the presidency, and the Senate decides the vice presidency. In theory, this could split the ticket between parties.

If they did it, it would be funny for about three days, and then just weird for four years. There is also the off chance that it would increase the incentive for assassins, which can't be good.

On Curses

So, the Curse of the Bambino has been broken. While the Red Sox revel in their victory, let's pay our proper respects to the Curse itself. After all, it was quite impressive: 86 years, and by a non-mummy.

Thursday, October 28, 2004

Look out Bush . . .

. . . because Ashton Kutcher is out there campaigning for Kerry! For those of us who don't get over to Kerry's blog a whole lot, here's the scoop.

It begins with a touching moment from Kerry's two step-sons:

Chris [Heinz] introduced the student-dominated crowd to John Kerry the man and John Kerry the stepfather by talking about the unexpected death of his own father in 1991, and about how John Kerry had embraced Chris and Andre when he married Teresa. It was a story I'd heard once before, and it brought back a lot of memories.

The narrator here is "Mark from Iowa." It is easy to by cynical about Chris Heinz's performance, which I won't be here. The kicker is the warm feeling of nostalgia Mark gets for a time when he'd heard this story before. To me it comes accross like someone remembering a sad moment from a movie they saw when they were twelve.

Kutcher: "I voted for Bush in 2000. Boy, did I get punked."

I'm not sure exactly what to say about that.

Then he told the story of how he voted for Bush in 2000, because he thought he and Bush shared a common background and world view. . . . "It turns out there are a lot of differences between me and George Bush, but the biggest one is that I know how to admit when I'm wrong. And boy was I wrong when I voted for Bush."

Now, Ashton's obviously a bright guy, having been admitted to the University of Iowa's biochemical engineering program, but the fact is he's an actor, and here has been trained to deliver JK's talking points. It's a strange point too, and one that has gotten entirely too much traction (it must be polling well). Does Ashton expect us to believe that if George Bush were to tomorrow get on NBC and say "hey country! The Iraq war was a hugh mistake! I'm incompetent!" that he would immediately jump to the other side? What's this fascination with admitting wrongs? I guess if they were to come out and say "I hate George Bush because he won't concede the election" it would lose some of its ring.

[H]e continued to hammer at George Bush's failings as a president and Bush's betrayal of the simple American values Bush espoused in 2000. Included in Kutcher's rant [yes, it says "rant" in the post --Ichi] was the story of how his sister, a teacher, had lost her job because of cuts in education funding, and how that in turn had cost his sister and her daughter their health care coverage. "George Bush forgot about my niece," Kutcher said, "and when he forgot about my niece he forgot about Iowa."

I take it back. Ashton is not obviously a bright guy if he thought that a Republican's goal in office was to provide massive federal dollars for local schools and universal government health care. I also think that schools are funded locally, or at least by the states rather than the federal government (though I'm not sure on all the details of school funding), so his self-interested story about how the tough economy is Bush's fault seems rather hollow.

The narrator ends with this:

As I walked I heard a gaggle of Canadian Geese approaching from the west, their honks echoing off the Pentacrest and the golden dome of the Old Capitol. As they passed overhead I looked up and saw the large flock form into a massive 'V', lighted from below by the powerful floodlights illuminated the dome. I stopped and watched as the 'V' flew east toward the horizon, and toward a new day in America.

Ah, the image of a Canadian 'V' flying east. I fitting image for Kerry, I suppose, seeing as how he'd like to bring some of that northern utopia down here to the States. I prefer to think of it victory finally eluding him (much like real-life geese, and flying off towards the other candidate in Washington (I know he works there too, but whatever).

Conservative Extremism?

UPDATE: For those of you coming from Spoons, thanks for visiting, and please also visit my main page.

I'm a little peturbed whenever people think that conservative judges, particularly Scalia or Thomas, are "extreme" in their views. That's why I take issue with this letter to The Repository (Canton, Ohio, link via How Appealing, and requires registration) which describes Bush's appointees as conservatives with "extremist agendas." Another quote: "A restructured court will be given many opportunities to roll back civil rights, workers rights, environmental protections, gay and lesbian rights, state-church separation, and a woman’s right to choose."

Wow. Naturally, Bush appointees may indeed have a profound impact on the nation. The Supreme Court is, after all, nine people that have the power to decide huge social issues. However, to label the impact "extremist" implies that these views that are way out of the mainstream. For example, a conservative court would be less likely to find race-based affirmative action programs constitutional, would likely limit standing to sue under environmental statutes to the government and parties actually harmed by illegal practices, and could allow states to regulate sexual activity (if the voters choose) and abortion (again, if the voters choose). It is hard to paint something as way out of the mainstream when a great number of Americans believe in it. For example many people obviously oppose abortions performed when the mother's or child's health is not in danger, and some even oppose abortions in those serious situations. Popular opinion should not sway the judiciary, but when the argument is "extremism," popular opinion should easily rebut the charge.

Aside from this, is that most of the "extremist" Supreme Court decisions this writer fears would not involve an irreversible substantive change. In other words, reversing Roe v. Wade will not make abortions illegal. The decisionmaking power would simply shift to lawmakers--environmental statutes can be changed, the government can enforce its own laws, and states can choose not to have sodomy statutes or to make all abortions legal. It is hard to see how switching the decisionmaking power from judicial fiat to legislative fiat is "extremist." The few things that the Court would take from the legislature, i.e. standing to sue for abstract harms and affirmative action, involve well established doctrines and plausible interpretations of the Constitution. Again, we aren't talking about the merits of the decisions, we are talking about extremism, and shifting the locus of power doesn't seem extremist at all.

The charge of extremism is extremely overblown, and calling something "extreme" when it simply differs from one's politics or opinions arrogant indeed.

Wednesday, October 27, 2004

Thoughts on the Electoral College

Had an interesting conversation with folks in a coffee house last night, and I feebly tried to defend the electoral college against attack, without much success. When it comes down to it, why do we really keep it around? I found it very difficult to articulate a reason, especially when the alternative is pure popular sovereignty. A few thoughts:

Geography has value, not just population. Sparsely populated states have cultural and economic interests that are rightly taken into account by the electoral college favoring their populations' per capita vote more than heavily populated states because those aspects are not captured by a staight head count.

The electoral college compartmentalizes voting difficulties. Florida's problem in '00 was isolated to Florida. In pure popular sovereignty, aggregating alleged irregularities in hundreds of counties nationwide could create giant problems. With the college, problems stay put. (Brian has periodically written on this).

Election fraud can manifest in swing states, but fraud can be monitored more heavily in those states as well.

It is not a problem that the candidates campaign in ridiculed states like Ohio and Florida. The fact that the rest of the nation has made up its mind already doesn't mean the process is broken, nor that certain states are regularly more likely to swing. This is just whining by California and New York.

Addressing the needs of large population centers, just because that's where the people are, is not necessarily a good thing. Making national politics revolve around urban needs could completely shut out rural needs, and may be detrimental to the urban areas themselves; are the cities really more likely to be right about complex social issues?

The idea that the current system unduly favors the states as opposed to the population is overblown. Only three presidential elections did not accord with the popular vote, and even then it was close (Gore had a 1 percent advantage in '00). One may argue that the system cannot favor states at all, but assuming that it can (perhaps for some of the above reasons), it is not horribly doing so.

All in all, I don't really care if we switched to a popular vote system to elect the President, but the above reasons make me think that overcoming the current inertia, setting up the infrastructure, and simply favoring California and New York based on a substantive judgement about large population aggregations' choices are not compelling reasons to abandon the electoral college. If it ain't broke; don't fix it.

Monday, October 25, 2004

How About a W in St. Louis?

Douglas Berman has suggested that Kerry really jump on the Red Sox bandwagon. Maybe so. But then should Bush show up in St. Louis? He could even play it off by wearing an Astros hat. If asked, "since the team from Texas lost, I want them to have lost to the best: Go Cards!" This would avoid the otherwise randomness of rooting for the Cardinals. I don't know how much animosity there is between the Astros and the Rangers, which could make this awkward.

But maybe he should wait until the red birds win a few at home first . . .

Missing Zarqawi

Stuart Benjamin posts here about how the White House apparently missed an opportunity to strike an Iraqi camp containing the now-household-name terrorist Zarqawi just before the start of the Iraq war. I really don't know what this suggests about the Bush administration and the war. For one, this was a tense time with diplomatic relations about Iraq; a military strike may have been unwise at the time, but I don't know enough to be sure. Second, the presence of Zarqawi in pre-war Iraq, dead or alive, would have lent credence to the administration's lead up to war, so I don't know the rationale for the pre-war hush job, though now that in retrospect Zarqawi is a major pain in the ass, a continued cover-up is shameful, though perhaps hindsight bias makes this politically smart. Third, the administration had no qualms about going right after Saddam in a well-publicized day one strike, while leaving him alive (especially anticipating a capture) may have been the underhanded PR move. Confusing, to say the least.

All in all, I wish we had taken Zarqawi out, but unless there is more to this story, I'm only critical of the administration in that shoulda-taken-Pedro-out-after-100-pitches kind of way. One should ask themselves how such a strike would have played under the "global test" before bashing Bush (too much).

In the Event of Rehnquist's Absence

We all wish a speedy recovery to Chief Justice Rehnquist after he was hospitalized for cancer. Worst case scenario planners, such as myself, might wonder what would happen if he were permanently incapacitated while still in office. After all, cased have already been heard this term. Do they have to start over?

Under the U.S. Code, it appears the Court will just continue on without the Chief until a replacement is appointed and confirmed. Under the statute designating the Court's membership, 28 U.S.C. Sec. 1, any six justices shall constitute a quorum for deciding cases. Also, under 28 U.S.C. Sec. 3, the Chief Justice's duties in case of incapacity are performed by the "associate justice next in precedence," decided by the "seniority of their commissions," 28 U.S.C. Sec. 4. Here, that would be Justice Stevens, appointed in 1975. I cannot find anything about whether the Court could stop hearing cases if it chose to, or whether it is obligated to continue. Also, although I'm not certain, a new Justice may be able to vote in cases where he/she did not hear oral arguments, but it would seem bad form to do so. If a future Justice does abstain from those cases heard before being elevated to the bench, then a partial Court could hear oral arguments for cases in the interim, and then decide those cases without a vote from the new Justice. This could conceivably get very political. But again, this is a worst-case scenario.

The last Supreme Court Justice to die while still serving in office was Chief Justice Vinson, who died in a September and was replaced by Earl Warren, which avoided the problem of dying during the October term.

[UPDATE:] SCOUTSBlog has a blurb on the possiblity of a Bush recess appointment to fill a Rehnquist vacancy, should the position become available. I'm unclear on how this would work, since the time lag between oral argument and decision may give the Senate time to get back and block the nomination, wouldn't it? Then the Court would be back in the position of having only an eight-member panel that heard arguments (assuming any new Justice abstains from cases he/she did not hear).

Triumph

Professor Bainbridge informs us all that it's St. Crispin's Day, and reprints the awesomeness of the speech of the same name from Shakespeare's Henry V.

Committing english major blasphemy, I never liked Shakespeare that much, with a few huge exceptions. Henry V is awesome, and not just because the French get their asses kicked at the Battle of Agincourt Field. King Henry's character is a truly triumphant character, which is even more apparent after slogging through both Henry IV plays and all three Henry VI plays, which are thick with the defeat and demoralizing kings squandering the empire.

Sunday, October 24, 2004

Music from Around the World

Saturday, October 23, 2004

The Law Reviews

This Posner article against law reviews has been making the rounds, notably at Handful o' Sand here and Crescat here and here. Naturally, as a law review member I have personal feelings on the subject, but I want to confine myself to article selection, which seems to be one of Posner's sticking points.

The ideal solution would be to create a few independent publishing houses, not affiliated with any law school, that publish legal pieces. It would be staffed full-time by lawyers, who consult with professors and practitioners if they receive something outside their area of expertise. They would be well trained and experienced in editing, so their suggestions wouldn't dare "annoy" the author. The publication would be objective, fair, and contain helpful information for practitioners.

Oh wait, aren't those called treatises?

I totally agree with Posner that law reviews aren't what they were in the late nineteenth century, but who cares? Now they are a vehicle for expanding legal thought. It is not such a bad thing if law reviews like constitutional law too much; it is malleable, it is sexy, and it is perfect for those who want to shape the boundaries of society. Leave ERISA to the professionals. Leave complicated statutory interpretation to the treatise writers. Though law review articles may help in those areas, they can legitimately be something else.

Another aspect of law reviews would seem to cut in favor of student article selection: the poltics of professor publication. I doubt that a law school's faculty would be immune from publishing the "tenure piece" of a colleague they liked any more than students, or worse, refusing to publish one just because he didn't play the internal power game right. In addition, professor politics on a law review staff that doesn't change would entrench certain ideas in a school's law review, rather than having the board turn over every year, and it would be harder to overcome biases without stepping on tenured toes.

And for all this, would the article selection quality really increase? Maybe not. Expertise is not as much of a problem as Posner lets on: the articles department at our law review looks at the existing literature to see how a piece fits into the scholarship. A law school's faculty should perhaps make themselves available if the articles department has questions on a subject, but otherwise it seems an advantage to have the process shielded somewhat from professor politics.

Hah!

This is a picture of John S. Pemberton, the inventor of Coca-Cola, from 1890, available from the Coca-Cola website (also available in huge). I write separately just to taunt Coke's image policy: "These photos are for editorial use only in newspapers, news magazines, trade publications and broadcast media. All images remain the property of The Coca-Cola Company. Under no circumstances can these images be used for any personal or commercial purpose." Clear blog snub.

I fear not, however, since this photo was taken in 1890, so the copyright has expired. I doubt that Coke's alteration of the photo's size or making it a digital image is enough creative work to make this thumbnail count as a derivative work. So Hah! I mock your policy!

I don't like it when candidates come close to the line like this. However, if Kerry does get to the White House, what are the chances that he will actually see a bill that only lowers taxes on lower bracket groups? Or that only raises them on corporations or the rich? Or that will only tax capital gains going to the rich? Virtually nil, especially with the Republican Congress. He will then have to make the tough political choice: continue denying tax breaks to the middle class (for whatever reason), or give tax cuts to everyone (even those he'd rather tax the hell out of). On the flip side, a tax increase that effects some, though not most, of the middle class could be a serious deviation from his hard-line guarantee of no taxes on anyone who makes less than $200k. His voting record is indeed informative on this point.

Bush's ad indeed misleads on the details, but I don't think it really misinforms the public about the practical consequences of a Kerry presidency on taxes.

Animal Standing? Not Likely.

Will Baude notes here the recent Ninth Circuit decision that denied standing to whales to sue in federal court, but opined that whales could have standing to sue if Congress gave them that power through statute. This seems doubtful.

Standing is a constitutional doctrine that only allows courts to hear concrete "cases or controversies," not abstract, potential, or theoretical claims. Standing requires that one party have an "injury in fact," that is "fairly traceable to the . . . defendant," and is reasonably likely to be remedied by the relief sought. Friends of the Earth, Inc.v. Laidlaw Envtl. Sys. (TOC), Inc., 528 U.S. 167, 180-81 (2000). Moreover, Congress may not grant standing beyond what the Constitution allows. The key question is thus whether the Constitution allows animal standing.

The Ninth Circuit wrote that "we see no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles, and mental incompetents." All of these are historical legal fictions, and particularly useful ones, that were available at common law, and naturally brought into American law. As for businesses, the suit is not that far removed from an actual individual suit; a suit by a corporation could perhaps be reclassified as a class action for all the shareholders, but what's the point? Similarly, a partnership can sue in its own name for convenience. Accounting purposes, long in existence, make this very sensible. As for property suing, the court cites a case where a ship counterclaimed agains a plaintiff, and it is a different proposition for an in rem counterclaim to be recognized than to have an inanimate object bring a claim in the first instance, rather than its owner. I'll even concede the point that a whale can counterclaim if sued in federal court. However, as for the larger claim that non-human standing is normal, the cases where this is allowed are very distinguishable from animals in that the represent useful human legal fictions.

As for the other cases involving humans without the capacity to sue, it also seems easily distinguishable that a human can stand in the shoes of another human, while a human may not stand in the shoes of whales.

Animal standing looks very distinguishable from other cases where arguably a human being is not being represented directly, but two more things cut against finding such standing: history and practicality. Historically, suit by an animal simply does not look like a common law suit. Practially, a suit on behalf of an animal (or plant?) would be tantamount to granting standing to any environmental legislation, which the current U.S. Supreme Court has really not been keen on. Since animal standing would be a way to circumvent traditional common law standing embodied in Article III of the Constitution, it seems a lilely loser.

An argument about how animal standing may be a good idea, and circumventing tradtional common law-like standing simply allows courts to address 21st century claims (where environmental regulation is common) is a different argument entirely--if standing were relaxed altogether, then humans could bring a claim themselves for their interest in enforcing the law, the love of the oceans, etc. If the Court is not willing to do this directly, it seems unlikely that a Court committed to the current restrictive concept of standing would follow the pretext of allowing animal standing.

Animal standing seems far fetched under current law, but it is hard to blame restrictive standing opponents looking for any opening in the doctrine.

Thursday, October 21, 2004

Drugs and Terrorism

In 2001, the United Nations Office of Drugs and Crime reported that Afghanistan's opium production had been reduced dramatically by the Taliban: "Farmers in Afghanistan, the world's number one producer of opium poppy, did not plant the illegal crop this year. Following a ban on poppy cultivation issued by the head of the Taliban in July 2000, UNDCP was able to verify thousands of hectares of poppy-free land in February 2001." Here is an AP report saying the same. However, this was likely a ruse as the Taliban secretly allowed stockpiles of heroin to accumulate, and then took advantage of the raised prices to fund terror activity in other nations. Production levels immediately rebounded in 2002 following the U.S. invasion. Today, drug trafficking could be as much as 60 percent of Afghanistan's GDP.

But since Afghanistan has absolutely nothing, doesn't it at least make some sense to leave the poppies where they are, especially if some farmers are just eeking out a living? As horrible as it sounds, when the only game in town is drugs, then for a while Afghanistan needs to play ball. This doesn't mean that it needs to become a free-for-all, with the Taliban and terrorists controlling the revenues.

The heroin problem seems so obvious and so large that it seems difficult to imagine that even President Bush wouldn't have thought about it. I see two possibilities: controlling the trafficking is way too hard to even think about right now, or something is being done covertly to harness the revenues and keep them mostly out of terrorist hands. The former is certainly plausible and would be unfortunate. The latter is plausible as well, and it would make sense that the U.S. is keeping it under the radar; after all, it would certainly be unseemly for the U.S. to be involved with international heroin trafficking, even if it were keep the new Afghan government afloat.

Weird conjecture? Perhaps, but an interesting possibility in my mind. Heck, if Bush could be keeping Usama's death under his hat, then this is possible as well, albeit for less noble reasons.

Clinton as U.N. Secretary General

Drudge links to this story about Bill Clinton seeking to become the next U.N. Secretary General after Kofi Annan's term ends in 2006. My thought: Good! As different as his views on U.S. foreign policy may be from my own (which is hard to guage), and how much he may differ from President Bush, he is no anti-American, at least by international standards. He has proven that he is willing to use military force in situations like Kosovo and Somalia, and pressure from him could break the impass felt in situations like Sudan. This would seem to be a good step toward changing the U.N. from an inept beauracracy into an actual legitimate force.

Wednesday, October 20, 2004

Lighter Fare

More on Jimmy

Power Line has an interesting analysis of President Jimmy Carter's appearence on Hardball with Chris Matthews, remarking on how "out of touch" Carter is on the Middle East. I tend to agree with that analysis, but a two parts of Carter's statements simply amazed me:

I think another parallel is that in some ways the Revolutionary War could have been avoided. It was an unnecessary war. Had the British Parliament been a little more sensitive to the colonial’s really legitimate complaints and requests the war could have been avoided completely and of course now we would have been a free country now as is Canada and India and Australia, having gotten our independence in a non-violent way.

. . . .

I think almost any reasonable person who knew history would say that you can’t go into an alien environment and force by rule of arms by forcing the people to adopt a strange concept and also when we were so destructive in going into Iraq with tens of thousands of innocent civilians killed . . . .

I think there is a strong analogy here between international relations and simple political decisionmaking. What strikes me in particular is that this is exactly the opposite of the position the left takes toward the United States' greatest domestic problems: slavery and racial segregation.

It may be a plausible argument that the Civil War came about because of a failure of diplomacy with the South, and one that I am certainly not an expert in, but I think it is undeniable that this argument is seriously out of fashion with most of America today, particularly for those of a liberal bent. This sort of analogy flows from Carter's statements: after all, he includes India's eventual independence (as Hindrocket points out, in 1947) after a long foreign rule as an example of the proper historical outcome. Is he really saying that any eventual diplomatic solution, no matter how far defered, is always the best route? Now, I don't know Carter's view on the Civil War, and I don't want to put words in his mouth, but to take his point about the Iraq war with the Revolution analogy as one that some liberals will agree with, then this contradiction with the slavery issue is hard to avoid. This glaring historical example cannot be ignored, and it seems quite disingenuous to mask a substantive disagreement with a war with this seemingly neutral appeal to procedure.

The second part strikes at the heart of many social issues in America's past and present: who decides important social issues when it would involve "forcing people to adopt a strange concept." In difference of degree rather than kind, the courts' decision on segregation involved, also at gunpoint, the forced adoption of an alien idea to the South, but one that many at the time thought was just, and one that the vast majority think is correct today. I consider myself reasonable, and I know some history, so indeed it seems to be possible for people to adopt results imposed on them from without, so the bald assertion that this as a concept is somehow inapplicable in the international setting but indespensible for domestic issues seems odd. It is at least odd, again to attribute Carter's statements to a leftist view that some will agree with, that a group would believe a foreign country simply could not have alien ways (democracy) "forced" upon them because of some lack of political consensus, but continually try to impose this concept at home through court decisions (e.g., same-sex marriage, abortion, etc.). There are certainly other issues at play that make these situations very distinguishable, and again I emphasize the difference in degree, but to flatly argue that ideas cannot be imposed seems odd.

These observations are just a gut reaction to those quotes mentioned above, and in this case I pick on liberal viewpoints, but I always find it interesting when any side makes categorical statements about a certain decision that contradict its own stance on other issues; the attempt at widespread appeal of an argument backfires when it gets too general. Also Jimmy Carter is insane.

Red Sox

Since the only difference between the (irrational) national love of the Red Sox and the national disdain for the Yankees is that the Red Sox are the lovable losers, if they actually succeed in winning the Series this year, they should become one of the most hated teams in baseball.

Some Thoughts on Debt

During the last campaign, I remember the candidates hashing it out over what to do with the surplus in the budget (oh, how I long for those heady days of the nineties!)--Bush said it should go to tax cuts, Gore touted his "lockbox" for social security, for which the surplus was going to save. Neither one addressed what I, and I suspect many other Americans, considered a major use for the surplus: pay down the national debt. Now, I'm no expert on debt, and considering my disdain for corporate finance that relies on carrying massive amounts of it, I may be overcautious in this regard. But nevertheless the national debt looms large, and I was baffled at how neither candidate made it a priority for at least part of the surplus.

Now, we have Bush and Kerry, a growing debt, and no talk about it, other than some lip service from Kerry on Bush's spending. Baffling. Bush's plan seems to be that revenues will increase, and wars will decrease, so spending should come under control, but whether or not this will happen does not directly address the tough questions on the debt. Kerry's answers baffle me as well: he has a clearer plan for how to raise revenue, but immediately, in Gore-like fashion, immediately earmarks it for huge social entitlements. I swear he simultaneously allocated this tax cut to his health care plan, and also charged Bush for favoring the tax cut to "saving social security," implying that his tax increase will do double duty here, which I find far-fetched.

Neither candidate seems like a very good President as far as the debt is concerned. Personally, I give the edge to Bush, because I'm both partisan like that, and he has a few things going for him: he'll probably spend less on entitlements than Kerry, since he hasn't promised them, both have basically promised to spend a ton on homeland security so there is no winner here, and the possibility of a Bush peace dividend from the war is a possibility. Still, as Stuart Benjamin blogs, Kerry may be better because gridlock will prevent spending altogether. But if it is going to come down to House Republicans anyway, I have some faith that normal fiscal conservatism will eventually prevail under a second Bush administration.

Hopfully, my faith will translate into something positive as far as the debt is concerned.

Tuesday, October 19, 2004

Political Power

Orin Kerr posts over at the Conspiracy that "support[ing] the President" is the number one concern in staffing the Justice Department, not "assembling the best possible team." Armand at Blooless Coup sees this as a bad thing, sumarized as "it's not competence . . ., it's loyalty." Based on a point that came up recently in my administrative law class, it is not clearly bad that loyalty matters in this situation.

First, government is about politics: even officials who are not directly elected are indirectly affected by the political process through the choice of the President. The President, as the executive branch of the federal government under the Constitution, is charged with enforcing the laws. Any enforcement comes with a certain amount of discretion. Since the Justice Department is essentially an agent of the President's executive power, then it makes sense that this discretion is exercised in a way the President wants, not under some neutral measure. This is important for two reasons. It allows the people's will to be indirectly implemented in how the law should be enforced (very touch on environmental law, or not so tough; hard on drug laws, or lenient; agressive Patriot Act use, not so much), and it also has an elected official that is directly accountable for the administration's enforcement of the laws.

Second, even putting aside the value and use of the political system operating through the President, if the President is going to take the political heat for decisions anyway, why do we have a problem with loyalty being an issue in appointment? It's his job on the line.

Third, this really doesn't diminish the quality of the Justice Department as a whole. I've never heard Ashcroft called "incompetent." Many people disagree with his positions, but this is not a sign of incompetence. If anything, he is too effective at pursuing avenues that some would rather he not. The question of whether someone "supports the President" simply switches the inquiry to who is the best person who follows the President's positions, not blindly choosing someone merely because they are loyal. Loyalty is not really the issue here--the President is not going to interfere in the daily activities at Justice, but he will appoint someone who, as closely as possible, will implement his views. This also makes sense because candidates for the job will distinguish themselves in non-neutral ways, so it is impossible to escape these politics anyway.

Finally, cohesion within the department seems important, and so lower level positions should be ready to follow the administration's chosen approach. Dissent is fine when it is criticism and advice, but at the end of the day Justice cannot be a creature with a different approach all over the country. If the President's choice is indeed the one to guide policy, then the benefits of uniformity should reinforce this throughout. This also makes the political process easier: electing a President will implement policy pretty much uniformly on a national scale, implementing the people's political choice. It will also be easier to hold the President politically accountable for unpopular activities.

It seems that it would be foolish for a President not to consider policy implementation a major factor in making political appointments, rather than just some neutral merit criteria. This is not the federal judiciary; this is political. Taking away that political element would also remove something that should be political from the people.

Oh Yeah

Sunday, October 17, 2004

Not Surprising

It looks like Jon Stewart's ratings are down this last month. Naturally I have no idea why this is, but I hope (as I ranted earlier) that the audience who chuckled when the Daily Show was being taken slightly seriously were put off when the show's host started to take himself seriously.

Maybe the reason that the Daily Show audience was so well informed was because it was well informed beforehand, and tuned in for satire.

Maybe I'm hatin' too much on Jon, which is odd, because I used to love that show when I had cable. What a difference an interview makes . . .

Best Picture?

This Newsweek article ponders whether either Mel Gibson's The Passion of the Christ or Michael Moore's Fahrenheit 9/11 will, or should, be nominated for best picture. I haven't seen either, so I cannot speak to their technical merit. But as to the two most notable attributes for each, box office gross and controversy, neither deserves to be nominated in my opinion.

When we go by popularity, then we get best picture winners like Forrest Gump and Tritanic, two wildly popular films that were clearly up against better fare (The Shawshank Redemption was clearly better then, and is clearly better now, but I'm not bitter).

As for controversy, I don't think for either this is a sign of pushing the limits of the medium or exploring taboo subject areas, but of just plain wrongness. I am biased in that I don't think The Passion was meant to be antisemetic, however I do think F911 was meant to be a total lie, but I don't doubt that Passion's detractors are seriously hurt by some of the subject matter.

Neither of these films should be nominated for best picture for the same reasonTy Cobb shouldn't be in the baseball hall of fame--the numbers add up, but it still feels like a black eye for the institution.

Metal Detectors

Brian questions why the Eleventh Circuit recently ruled that metal detectors at the School of the Americas protest violate the First and Fourth Amendments since this is a large public gathering similar to entering a public building or an airport, and metal detectors are allowed in those places. Metal detectors here would certainly seem to serve a similar, and constitutional, purpose.

The court holds that the actions violate both the First and Fourth Amendments. Since I know less about the First, I will only address what I know about the Fourth Amendment search and seizure issue. First, the court was asked to hold that such searches are per se permissible in light of terrorism concerns, which is quickly rejected. Still, this is a much smaller part of the opinion than this AP story would lead one to believe. The rest of the opinion focuses on two other aspects: whether this was a "special needs" search under the Fourth Amendment, rather than a search for criminal guilt, under which the individual is entitled to less protection, and whether this search is nonetheless "reasonable" under the language of the Fourth Amendment.

Under a "special needs" search, or public safety search, the government has much broader power to search people than it does for criminal investigations. For example, the government may set up DUI checkpoints to check for drunk drivers, may randomly drug test high school students who participate in extracurricular activities, and (although I don't know of a specific case) have metal detectors at the court house. Even though they may result in an arrest, these brief seizures are jusified by the concern for public safety. The government's power is not unlimited, however, since the Supreme Court has ruled that checkpoint automobile stops to check for narcotics are not permissible because they do not implicate the same safety concerns as DUI stops, and are primarily to check general criminal wrongdoing.

The gathering at issue in the case above was in public, there had been some history of crossing onto non-public land, and the setting of smoke bombs. On basic principles this is tough, but I don't know of any "large gathering" exception to the Fourth Amendmnent under a "special needs" test, especially since it is occuring on public lands held open to all (not like the courhouse, for example, which is held open for a specific purpose and safety of court officers is easily articulable, but this may get into the First Amendment too much). If we agree that the city could not set up metal detectors for citizens walking down every busy street, then the case for this gathering becomes much harder, especially without a history of violence. The alternative to the metal detectors is to just have some police officers around, who may use metal detectors on someone for whom they reasonably suspect of having a weapon.

One final note on this aspect of the case is that the court's actual analysis is quite unsatisfactory in that is gives great weight to the criminal statutes that prevent possession of weapons and other devices, and that the use of metal detectors is too close to a criminal investigation for this reason. This sounds bogus; every safety search may uncover incriminating evidence, but are still upheld. The court does not explain why this is distinguishable from a DUI stop in this regard. The city could simply promise not to prosecute those who have weapons or other contraband, or the court could hold such evidence inadmissible at a criminal trial. I think the decision could be upheld on en banc review, but not for the reason the panel gave since it is short on reasoning.

The last part of the Fourth Amendment analysis addresses the "reasonableness" of the search. The Fourth Amendment does only prohibit "unreasonable" searches and seizures, but the court rightly points out that there is a history of usage in play as well, with some level of individualized suspicion being required. However, the court, rather naively in my opinion, then goes on to talk about the rigid warrent requirement, the narrow exceptions, and the level of "probable cause" for such searches. Even ignoring the Terry v. Ohio standard that allows a minimally intrusive search based upon only "reasonable suspicion," this analysis seems to ignore the Supreme Court's eviceration of the warrant requirement (like it or not) and the flexibility of "reasonableness," specifically with respect to safety searches. The short shrift given this arument seems high on rhetoric and low on reality. Still, the argument was weak, so maybe that's all it deserved.

Again, the city is not precluded from having a substantial police presence at these events. And, yes, I would like to see Eugene Volokh's analysis of the First Amendment issue, too.

Saturday, October 16, 2004

Jon Stewart

This has been making the rounds, and I think it is a slightly amusing, but otherwise disgraceful performance by Jon Stewart on Crossfire. He opportunistically wore two different hats: when he decided to lecture the hosts like 5 year olds, he did so in highly conclusory terms like "you guys need to help America," or "stop being partisan hacks." And then when the hosts asked him what he thought, he played the comedian, in a condescending manner to the hosts. Now, there is a place for criticism by those who don't practice the art themselves, for instance, literary critics don't write books, but their opinion is legitimate because it is an art in itself; they support their opinions and analyses. Now, if a literary critic sat down with an author and said things like "do better!" or "your books are not good for society," and then when asked why, said "do I look like an author? that's not my job!," no one would take them seriously. That's exactly what happened with Jon Stewart.

The best I can tell, Stewart would rather have the show, instead of being a debate (although he claims the show is not currently a debate, but I don't know what else to call an adversarial approach to politics), be news analysis. However, he doesn't ever say this, and doesn't say why partisan advarsarial shows are bad, leaving me unconvinced. When he was challenged on his expertise about such analysis (with the hosts looking at Stewart's questions to John Kerry, or trying to defend their styles when allowed to speak), Stewart switched hats, and riddiculed the hosts for trying to compare his comedy show to hard news, and added nothing further. Since Stewart was claiming that the Crossfire guys were not doing a good job and should do something different, the very least he could do would be to show a little expertise in the matter, stop being a smartass when his ass was to the fire, and engage seriously, which seems to have been his whole point about what the hosts were doing wrong in the first place.

Indeed, Jon, you are a comedian, and do not need to ask hard-hitting questions. Which is why your entire attack on Crossfire was completely self-serving and meaningless. If it was a parody or meant to have any other effect, it was completely lost on me. It's a shame too, as the Daily Show's clout just keeps rising, Stewart had a real chance to establish himself as a legitimate thinker who chooses to do comedy and also lend some legitimacy to the show's political bite. Instead, he showed us just the opposite.

Imbecile

Low blow from the Kerry campaign, blaming W for the flu vaccine shortage. As if he could right now slide down the pole into the Bush Cave and whip up a new batch tomorrow, Kerry portrays America's flu vaccination shortage as one of personal failure: a long time coming and clearly preventable. That's not the impression I get from this Reuters story, which cites problems at a British plant which contaminated the supply. The FDA, doing exactly what it's supposed to do, has deemed the batch unsafe. Stuff happens.

Now, the obvious solution to the problem is to make twice as much flu vaccine each season as the nation is expected to need, and then throw away the surplus. However, if this is what happened, I suspect that the Kerry ad would say "Bush wastes 50% of flu vaccine, squander's our seniors money. It's time for a change!" But seriously folks, what other solution is there? Batches reportedly take months to create. Canada does not have enough of a surplus to help, (which Kerry cites as another Bush failure, so was Canada's choice to get just enough vaccine prudent planning?).

Friday, October 15, 2004

More Shirts, Please

The Great Writ

How Appealing points to an interestin concurring opinion here to a Third Circuit habeas corpus case. It involves an interpretation of the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), which provides that habeas relief shall not issue unless the state court's determination "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" (emphasis added).

Concurring, Judge Nygaard opines that "clearly established law as determined by the Supreme Court" should include explicit Constitutional rights that the Supreme Court has not yet passed on directly. This would eliminate "the anomaly of having an explicit and self-evident constitutional right that is unenforceable in habeas proceedings simply because the Supreme Court has not elaborated upon the contours of that right." Yet, this interpretation would circumvent the plain meaning of the statute, since it precludes other courts from opining on the meaning of the Constitution on habeas review, regardless of how plain it thinks that reading would be.

The example the Judge gives is unilluminating, since it refers to the plain Fifth Amendment right not to have incriminating statements entered against an accused. The only plain meaning inherent is that one cannot be forced to take the stand in an inquisitorial style hearing. Indeed, the meaning that Judge Nygaard so plainly attributes to the Fifth Amendment was not at all applied until the middle of the twentieth century, through decisions by the Supreme Court. Plain meaning is never plain, and where it is, the Supreme Cout has almost certainly spoken to it already. The appeal to plain meaning is weak because of this, and seems like a pretext to subvert AEDPA, not a reasonable adendum.

AEDPA also makes a clear policy choice in favor of state court judgments which even a resort to "plain meaning" does not persuasively overcome. First, state courts are bound to follow the Constitution, and thus are bound to interpret it in the first instance. Second, they are bound by the Supreme Court's rulings on the Constitution, which creates more certainty than turning to several lower courts. Third, AEDPA requires that those results be reasonable applications of federal law as determined by the Supreme Court, allowing some small latitude for federal habeas relief, but still giving primacy to the state courts. Giving lower courts the "plain meaning" argument would allow themselves to insert their discretion into this scheme where the statute clearly does not warrant it, and the policy favoring state judgments does not counsel it.

Finally, the observation that this could allow flagrant constitutional violations (assuming state courts abdicate their role in an area where there is no Supreme Court ruling, and certiorari is not granted from the state court's judgment) is one of policy and not of statutory construction; judging from the language of the statute, this "anomoly" is clearly allowed. The best argument for not following the statutory command is that this would be a suspension of the writ of habeas corpus, forbidden under Constitution art. 1, sec. 9, cl. 2. However, this analysis could be very complicated, and require more analysis than the small section Judge Nygaard devotes to it, and is one that I cannot comment on thoughtfully.

To sum up, habeas fans probably don't like AEDPA very much, but it says what it says. Whether or not one believes it is good policy to trust state courts, AEDPA does. I find the argument for "plain meaning" consitutional violations weak for practical concerns, and because AEDPA says it doesn't matter. This concurrence should go away.

Plain Meaning in Action

So I went to the post office today to apply for a U.S. passport. I arrived at 9:30, but the passport section would open at 10:00. This post office also took photos instead of requiring me to bring them. They cost $15, but the person at the desk said something substantially similar to this: "it is less with AAA." Thinking that this meant there was some sort of AAA discount, I decided to stay instead of driving to some other location to take the photos. However, when the time came, I found out that there was no discount at all: the person was simply informing me that if I were to go to AAA, then it would cost less to get the photos.

Now, I could be in the wrong here, but since AAA discounts are not uncommon, and since this nugget of information, if not refering to a AAA discount for photos at the post office, is just some random information thrown in for the hell of it, I don't think my interpretation was wrong. I ended up paying the full price since I didn't want to leave and come back later. I could possibly have argued the plain meaning of the words spoken should have been interpreted my way despite the speaker's intent otherwise, but since the post office worker didn't look like a textualist (speechist?), I gave up.

Karma, however, is kind. I found a parking meter in Westwood with an hour left on it, went to Noah's Bagels, and read The Jewish Journal, as I like to do on Fridays. It's the little things.

Nader? Really?

Powerline notes here that Ralph Nader has significant support in key swing states, and may make a difference after all. I've never really understood the claim that Nader was taking support away from the Democrats. First, we would have to assume that the Nader voter would have voted at all on election day if Nader did not run. Nader voters know that their candidate will never win anything, so it is more of a statement and an attempt to get more recognition in the future. Second, we have to assume that this voter would vote for Kerry in the absence of Ralph. There are other third party candidates on the ballot, and someone truly voting her conscience would likely not vote for Kerry, already having dumped him for a sure loser. Heck, they may even be Republicans who don't like Bush, but would vote for him over Kerry.

Still, I have no idea how those with Nader/without Nader polls work, and they show that Dems do better without him. Boggles the mind, it does.

Thursday, October 14, 2004

Way to Go, Bobby

The Mainichi Shimbun reports here that chess guy Bobby Fischer has vowed revenge against Japanese Prime Minister Junichiro Koizumi and George W. Bush for detaining him for months in Japan, including a charge that Japan was trying to irradiate him. The report also notes: "Fischer's attack on the prime minister also contained a profanity directed at Koizumi and the relationship the chess champion accused him of having with his mother, but it is not suitable for print." Good times.

Why the hell

do the baseball playoffs cater to the baseball ignorant? In addition to Tim McCarver's inane chatter (I once heard him note that when a team is down by two runs, a walk is better than a home run), the playoffs feature Fox Sports' Scooter the Dumbass Baseball, which tells people the difference between pitches. For instance, the fastball is thrown fast, and the sinker is too...and then...sinks. I don't know that giving up this secret baseball knowledge will make the otherwise disinterested channel surfing viewer stand up and exclaim "Oh, I get it now! Baseball!," and then begin watching. But what do I know?

Sue the Government!

Eugene Volokh notes here a likely unsuccessful suit being considered against Disney over the 1998 Copyright Term Extension Act (CTEA), which extended all copyrights by 20 years, even for works already protected.

But here's something that's been kicking around in my head for a while: what about a claim against the U.S. government under the Fifth Amendment's Takings Clause? The public domain was set to receive a great number of works that have been effectively taken away from it for another twenty years. If the public domain could be cast as a property interest vested in the public, then the government, through legislation, took this property away for all works in existence before 1998. Think of it this way: the copyright holder has property rights in a work for a number of years, with the remainder to go to everyone (the public domain) in the form of free use.

One problem I can come up with is that the public domain is not a traditional property interest since some of the earmarks of property are not present: ability to exclude others, exclusive dominion and control, alienability, etc. However, it is certainly valuable culturally (free culture!) and can generate money through production of chattels (new publications and derivative works) and services. In essentially making the remainder interest a commons, rather than private property of a few, should the claim really be precluded? I admit it makes a convenient handle to destroy the claim, but in theory I don't think it's that clear.

The true problems are, of course, quantification of this interest because of the great numbers of people involved, and actually paying a money judgment would be near impossible (tax break maybe?), but maybe these difficulties are just a sign of how egregious the taking is, rather than a reason to disregard the claim as frivolous.

Any takers?

[Update:] Eugene Volokh replies via email: "Taking of public property -- such as the public domain -- isn't covered by the Takings Clause. That's one reason that the government can freely hand out public property towards individuals, as it did with homesteading in the West." As I am certainly no expert, I must defer. And I really wanted to stick it to the government, too!

[Update 2:] Is this really true? When the government grants lands, doesn't it have title? I don't know that the public domain is directly analogous, but at this point I feel I'm beating a dead horse.

Fair and Balanced

TalkLeft has a fair reporting of the Bill O'Reiley flurry, sticking to their principles and noting that he is entitled to the presumption of innocence (used colloquially, since this is civil). I always like it when liberal outlets refrain from sticking it to a popular right-wing target in cases like this, and instead apply their usual standards. Just want to note that they're pretty cool for doing that.

UCLA Prof Plug

Being enrolled in professor Bainbridge's business associations class this fall, and much enjoying it, I picked up a copy of the good professor's Corporation Law and Economics to help with class. Highly recommended: each chapter has a succinct summary of the relevant docrine (e.g., the business judgment rule or limited liability), but then spins off into mini law review article-type arguments in favor of the law and explanations that support (or disagree with) actual court cases using law and economics analysis. I'm not a big fan of law and economics generally, but find it especially persuasive in certain subjects, particularly property law, and certainly corporation law. Check it out.

Debate

Mostly skipped out on the debate last night. The part I did watch made me annoyed with W's repetition of the same talking points, and John Kerry generally. One thing in particular with Kerry was the way he used the word "right" to refer to getting drugs from Canada, something to the effect that 'Bush took away your right to get imported drugs from Canada.' The word "right" is generally thrown about too often when another term is more accurate, and here it was clearly done for a political purpose, as if there were a duty to supply the American people with Canadian drugs that was breached. Useful rhetoric, to be sure, but annoying.

There was also a point where Kerry was talking about the Constitution as a wonderful document (perhaps the abortion question, but I cannot remember exactly), and then rattled off a number of statutory rights and privileges.

New Blog

Hands Off

The AP reports here that the FEC may seek to regulate internet sites under campaign finance regulation. Some of this troubles me. For instance, Fred Wertheimer of the group Democracy 21 notes that "the Internet cannot become a major avenue for evading and circumventing campaign finance laws on the grounds that people just want the Internet free from regulation of any kind." This sounds logical, but I think it takes the wrong normative approach; free speech should be looked at first, not how to bring the internet in line with current regulation.

The internet is, largely, sui generis in the way in transmits information: anyone can enter at minimal cost via their own ISP's web space, and other services (shameless Blog*spot plug) allow more sophisticated communication tools for the otherwise technologically challenged. The internet is virtually unlimited (I say this realizing large structural upgrades are necessary for the future, but see this as a solvable problem), unlike broadcast airwaves (regulated by the government) or cable (high entry costs, even if not as limited). The internet allows users to self-select what they view; they are not bound by what networks (or cable channels) choose, not bound by time constraints, and have more flexibility to seek out other information to rebut one view.

The main reasons that campaign finance regulation passes First Amendment scrutiny is that the state has an interest in preventing corruption, the appearance of corruption, and preventing corporations from having undue influence. The McConnell v. FEC decision is too complicated for me to understand, so there may be other rationales I am missing, but this is the gist of it. With the internet, it is unlikely that large media conglomerates will unduly influence politics through speech for the reasons given above: easy access, unlimited access, and counter speech. The rationales that exist in television and radio are not merely different, but almost disappear.

Regulation of the internet under the guise of campaign finance compliance puts the cart before the horse; it would allow reguation to slip in the back door of the First Amendment by piggybacking on sound rationales for other platforms and then coming to the internet by way of "closeing loopholes." I think there is indeed a strong argument to keep the internet free of regulation for its own sake, at least for speech (fundraising should not be treated differently). It is its own animal, and a powerful tool for all to speak.

Tuesday, October 12, 2004

Voter Fraud in Colorado . . . A Blow to Kerry?

As Kerry blows into black churches and comes close to outright saying that Republicans want to disenfranchise them all (just like they did in 2000 in those Democrat controlled counties!), this story comes out (link via Drudge) about a huge amount of voter fraud in Colorado. The story doesn't say if either party was the beneficiary of the lion's share of the fraudulent registering, and implies that money was the prime motivation.

However, the group that appears to be at the center of this is ACORN, a group that empowers low-income folks in the political process on such issues as unfair lending, unionization, and others stuff on a reportedly nonpartisan basis. Here is a news story on their site touting their efforts in "swing states," which includes this quote: "We know it's going on, and it's a very encouraging sign," said Steve Elmendorf, deputy campaign manager for Senator John Kerry, the Democratic presidential nominee. The new voters, Mr. Elmendorf said, "could very much be the difference." The same story notes that "Prosecutors in Columbus have filed criminal charges against an Acorn registrar, saying that he filed a false registration form and forged a signature," and "an examination of county registration records shows that the groups have added thousands of new Democrats to the rolls and have far outnumbered new registrations in Republican areas."

Now, there are certainly reasons why the groups ACORN targets would favor the Democrat over Mr. Bush, and register accordingly, but even assuming facts most favorably to Kerry, his campaign was certainly on notice that a group touted as doing major work that benefitted the Dems was perhaps behaving badly in key states. It seems like a major black eye for a candidate who walks a fine line when talking about counting votes to be associated even indirectly with voter fraud, especially when he claims to be "organizing a team of lawyers to challenge any complaints of voters denied access to polling places or uncertain ballots." Perhaps he should have mobilized some of those lawyers to monitor things things beforehand as well.

Holy Crap

In the Holy Crap segment tonight, this story (via Drudge): "Son Kills Elderly Mother With Crossbow." It gets better: "After taking a bike ride to cool down [from their argument], he took a crossbow from the trunk of his car and shot a phonebook 'so he could impress his mother with the power of the cross bow,' according to a report by Martin County sheriff's officials. He said when she wasn't impressed, he shot her in the chest, the report said." (emphasis added).

And it Begins...

I wondered how long it would be before the Kerry campaign politicized the death of Christopher Reeve. Not long: "When John Kerry is president, people like Christopher Reeve are going to walk. Get up out of that wheelchair and walk again." Via Drudge.

Glenn Reynolds has wondered how important this stem cell thing really is to people. I do as well. For those who are skeptical, Steve Milloy provides useful questions that should be answered (registration required). Here's a sample: "Here's the question California taxpayers need to ask themselves before Nov. 2: 'If Prop. 71 [the California ballot measure that would provide public money for stem cell research] is such a good idea, why aren't investors rushing to pour their own money into biotech companies doing stem cell research?'"

Monday, October 11, 2004

Strange Days

On trying to find the answer to PG's question, I stumble on over to the Internet Movie Data Base and find that Richard Linklater is involved in the production of a film version of A Scanner Darkly, a Phillip K. Dick novel I read a very long time ago and much enjoyed. This site also claims that the film version is planning on being a faithful adaptation of the Dick novel, which is usually not the case with his many works that films have been based on (Blade Runner, for example, bears only slight resemblance to Do Androids Dream of Electric Sheep?). Good times.

Anyway, how did those guys get jurisdiction to bring a claim in New Mexico? My best guess is that, since films are shown everywhere, including New Mexico, this would establish sufficient contacts with that state for personal jurisdiction (something about international shoes and Volkswagons comes vaguely to mind).

Old Enough to Kill . . .

The Court will weigh the propriety of executing people under 18 says this news article (via Howard). Certainly an interesting question.

I don't feel very good about current Eighth Amendment jurisprudence that, as this article points out, decides whether society has "reached a consensus that such executions violate standards of decency and amount to cruel and unusual punishment." I find it difficult to reconcile with the judicial role how a court is to decide that society has reached a "consensus" but has failed to implement it politically, in fact calling for just the opposite. Instead, it seems to be a euphamism for what elites would rather not have in their society.

I also don't think that the jurisprudence really allows for "evolution" of these thoughts. That would imply that the standards of decency could change to where certain kinds of executions (for example) are once again acceptable. However, the law seems to imply that decency is a one-way ratchet: of course we can get "more decent" (i.e., have fewer executions), but we surely cannot become "less decent" (read: have more executions). If this is so, then the courts must be using some other measure besides society's standards, or else the law could indeed ebb and flow with the people's temperment.

The death penalty is certainly a controversial issue, and law currently embodies certain norms for who we should or should not execute. For example, the insane should not put to death (an should not even be found guilty if they were insane at the time of the crime). This probably illustrates our general feeling toward criminal justice: individual mens rea is the deciding factor in punishment. Age is used as a categorical proxy for this measurement, hence the juvenile justice system. But to say categorically that the Constitution says a seventeen year old will never have the mental capacity to be sentenced to death, and that we should not even ask this question as a civilized society, I think attaches far more to the words "cruel and unusual punishment" then the document calls for. I also don't know that society (as far as drawing categorical rules) is failing to implement the proper standards legislatively.

Any Court decison that draws the line here will likely be projecting other problems with the system onto this issue.

Sunday, October 10, 2004

Cause and Effect

On global warming, an interesting report on an increased rate of CO2 released into the atmosphere, over 2 ppm/yr for two consecutive years, a significant mark according to experts. However, we should be cautious and critical of these findings, lest Hollywood influence politics to the detriment of all. This UK Independent article both rationally explains that the jump "cannot be explained by any corresponding jump in terrestrial emissions of CO2 from power stations and motor vehicles - because there has been none," but ends the piece with a misplaced (and dire) warning from some dude: ""That means we are running out of time to stabilise the climate. Governments and business will both have to invest dramatically more if we are to avoid the global warming catastrophe that Tony Blair has warned against."

I doubt that industry can invest in measures to combat something it isn't causing. However, this is certainly something to keep an eye on.

Back to the Past

Drudge attributes the following quote to Kerry: "We have to get back to the place we were, where terrorists are not the focus of our lives, but they're a nuisance."

Even out of context, this is a good illustration of why Kerry's philosophy on the War on Terror is drastically different that what he sometimes claims. Did you catch in the debates how he criticized Bush for not catching bin Laden by saying things like "taking the focus off those who attacked us"? Past tense. Even though he claims to want to "kill the terrorists" wherever they are, it seems like he defines "terrorist" as someone who already attacked us, not someone who will attack us.

This is the September 10, 2001 attitude, folks. This is the difference between the candidates. Decide accordingly.

Daily Humor

Kerry's Scare Tactics

Since John Kerry is on a quest to bring the truth back to American politics, I wonder when we'll see an apology for his little Taliban love fest meant to scare Americans into believing our military (and vicariously through them George W. Bush) are inept and left Afghanistan ripe for the retaking. This certainly doesn't appear to be the case.

English

Despite what the French may think, I really like the english language, in part because I speak it, but also because it seems to be the best language out of any I have encountered for prose. The Oxford English Dictionary contains about half a million words, although counting dialects and slang english may have closer to a million. As far as I know, this far outpaces all other spoken languages. I count this as a good thing.

First, in creative writing, chances are there is just the right word for a particular idea, and if there isn't, english easily allows a new word to be created, borrowed, or otherwise adapted to the purpose. This is a boon to prose writing. Second, english allows culture to shape it, rather than (as the French fear) the other way around; english seems to pick up traits from other cultures very easily. Just look at how many yiddish words are now in common usage in America. Perhaps this could be seen as "dilution" of a "pure" culture with one language, but this is a one-sided and narrow-minded view of culture. Third, despite the large vocabulary, english is fairly simple to speak: we have subject-verb-object word order (compare to German), we don't conjugate oddly (like Russian), and generally have no rules on level-of-speaker stuff (see Japanese). At the least, english is no more complicated than other languages as far a oddities of speaking.

The main drawback of english is that spelling deviates from the "rules" so frequently that it is only slightly more useful than chinese writing. Memorization is key. It is odd how much different english-speaking regions stick to their particular spelling dialects. I personally would consider military action if Canada tried to impose that "colour" crap on us.

Anyway, I like english a lot, and think it has a lot to offer functionally and artistically in prose. Poetry is quite another matter; every other romance language is better at structure and rhyme, asian languages seem to have poetry styles the emulate those languages' best qualities (e.g., haiku's crystalization of a single emotional moment). The only english triumph in poetry was modernism, which dealt more with thought and structure than with meter and rhyme, and often incorporated other languages to accomplish this. Query whether it is truly a triumph when a language's best poetry requires supplemental material larger than the poem itself to understand.

Supreme Court Justices

Last night's debate question on who each would nominate to the Supreme Court, despite our President's odd definition of interpreting the Constitution and his gratuitous Dred Scott reference, was a very difficult one, and one that did not and should not have been answered directly. For one thing, Senate confirmation hearings for the next justice are going to be brutal; any nominee will be put through the wringer, which will probably include partisan hit jobs. Why give the pundits months or years of lead time for this?

Second, every candidate has their dream nominee (a Scalia or a Brennan), and then there's the ones they will end up nominating because the Senate sucks (Kennedy). The debate was not the forum for either position: red meat will only meet with dissappointment come appointment time, and saying outright "I'm going for mediocrity!" wouldn't excite the crowd.

Friday, October 08, 2004

Back Spin

Posts by InstaPundit and Power Line try to spin the ball the other way with Bremer's comments on the troop levels in Iraq. However, I'll defer to the always insightful Phil Carter of Intel Dump for the military angle:

Does anyone else see the disconnect here? On the one hand, Jerry Bremer criticizes the administration for not sending enough troops to Iraq to do the job. But then, he says that "victory also depends on devoting the resources necessary to win" -- and has the audacity to criticize Sen. John Kerry for his vote on the supplemental appropriations bill while supporting the same Bush administration that failed to devote the resources necessary to win. It just doesn't make sense; it's the kind of logical inconsistency that has plagued Bremer since the day he touched down in Baghdad, and which has plagued U.S. policy in Iraq since before then.

You cannot say on the one hand, as the White House has done, that you will commit everything necessary to win in Iraq -- and then fight a war on the cheap without sufficient numbers of boots on the ground.

The decision to support Bush over Kerry may very well be justified, but it seems as if there were truly not enough troops on the ground. Perhaps this is a necessary cost of civilian control of the military, but it doesn't change the truth.

Thursday, October 07, 2004

Top 5 10 Worst Supreme Court Opinions

In order to try to get my brain back in blawg mode, I'm going to try to think of the top ten worst U.S. Supreme Court decisons of all time. However, currently I only can think of five, so here they are in no particular order.

Seminole Tribe v. Florida--The Court brought back sovereign immunity from the brink of eradication, and with a vengeance. Overruling Pennsylvania v. Union Gas Co., which held that the Commerce Clause could abrogate sovereign immunity, the Court held that states are immune from suit under statutes enacted under Congress's commerce power. Substantively, this may anger some, but the real kicker comes later. Under the doctrine of Ex Parte Young, plaintiffs may still sue state officials for injunctive relief. However, the Court ruled that this remedy was foreclosed by preemption--the remedial provisions in the statute it just declared unconstitutional precluded the Ex parte Young remedy. This case is a train wreck.

The Slaughter House Cases--A series of cases that came down after the Fourteenth Amendment was passed decided on whether certain conduct was unconstitutional under the new "Privileges or Immunities" clause of that amendment. The Court said that this clause is totally meaningless. Thus, the Supreme Court erased part of the Constitution for the hell of it.

Dickerson v. United States--For decades, the Court, often per Justice Rehnquist, had declared the rule in Miranda v. Arizona to be not a constitutional decision, but a prophylactic decsion to protect the Fifth Amendment privilege against self-incrimination. However, in Dickerson, per Chief Justice Rehnquist, the Court inexplicably held that the Miranda rules are constitutional enough that Congress may not override them through legislation. Justice Scalia calls the C.J. out quite effectively in dissent. Later, the Court ruled that the Miranda rules are not constitutional for the purposes of section 1983 suits. The best I can guess, Rehnquist simply didn't like the idea of the Supreme Court's power being questioned.

Wickard v. Filburn--The Court was put on the defensive in the New Deal era, and this case is largely credited for ushering in the era of unchallenged Commerce Clause power. In it, the Court found a law that resticted farmers' ability to grow grain for their own use to be a valid exercise of Congress's interstate commerce power because, in the aggregate, purely intrastate activities like this could have a substantial effect on interstate commerce. The Court essentially eviscerated the Commerce Clause as a limit on government power.

UC Regents v. Bakke--The "reverse discrimination" case from 1978 ushered in the era of confused affirmative action rhetoric by holding that "diversity" was the key state interest in affimative action programs. While Grutter and Gratz together may be a large train wreck, this case was the key, and the failure to abandon it will just engender more confusion. In my opinion, this case tries to split the baby, which is never successful: it tries to make the Constitution sensitive to race despite the Constitution's language, but appeases the other side by making a fairly neutral and meaningless criteria the compelling state interest. Thank you, Justice Powell.

[Update 1] Bush v. Gore--Via a thoughtful comment to this post, the reviled case of 2000 makes the list. However, like most of the other cases on this list, it is not because of the substantive result, but because of its opacity. Nobody knows what this case said, but everyone has an opinion: the California recall election invoked B v. G for the proposition that every vote needed to count, the case's detractors invoke it for politics and flip-flop federalism, and its supporters don't really invoke it at all. It looks as though the Court produced a case that should never be cited for anything.

[Update 2] Chavez v. Martinez--This is the Miranda case mentioned in the above discussion of Dickerson. I mention it separately so it may represent the class of Supreme Court cases with so many opinions it is impossible to sort out. The entire text that received a majority opinion is as follows:

In deciding whether an officer is entitled to qualified immunity, we must first determine whether the officer's alleged conduct violated a constitutional right. If not, the officer is entitled to qualified immunity, and we need not consider whether the asserted right was "clearly established." We conclude that Martinez's allegations fail to state a violation of his constitutional rights.

[Update 3] Marbury v. Madison--If Bush v. Gore made it, then this one should too. It has it all: a volitile political background, an opaque decision grounded in questionable statutory and constitutional interpretation, tacit approval of a blatently unconstitutional series of events, and a repeat of truisms of judicial review. If it weren't for the twentieth century's love affair with its language about rights/remedies and cases/controversies, no one would care about Marbury. Most overrated case of all time.

Daubert v. Merill Dow Parmaceuticals--Ok, this is a bit of a stretch, but I just needed one more! The Court decided that only using established science as expert evidence in court trials wasn't any good, so they relaxed the standard to a fuzzy four factor analysis, which always works well. Each side can complain about this one: junk science plaintiffs now have a hook to hang their coat on, and defendants are freer to bring in junk refutations of their own. Leaving science to judges can produce nothing good.Will try to think of more later. And that's all I got.